If one were to simply peruse the headlines Thursday morning, it would be reasonable to conclude that the Fifth Circuit Court of Appeals had thrown out last week's ruling by a district court judge in Texas that would effectively ban Mifepristone, one of the two drugs used to induce medication abortions. The original decision was made by Donald Trump appointee Matthew Kacsmaryk, who was widely criticized across the legal landscape for flouting very basic legal principles in order to advance his far-right ideology. Kacsmaryk's opinion was so poorly argued, in fact, that there was hope that even the very anti-abortion Fifth Circuit and Supreme Court would be forced to overturn it.
Initially, it seemed that was the case when, late Wednesday, the Fifth Circuit issued a stay to part of Kacsmaryk's ruling that would have blocked doctors from prescribing Mifepristone altogether. "Appeals court temporarily keeps abortion pill available but limits access," read the headline at the Washington Post. "Appeals court declines to block key abortion pill, bars access by mail," read the headline at NBC News. It was less than an ideal decision for abortion providers, the coverage suggested, but perhaps mostly a win insofar as the pill was still available.
But once legal experts started to dig into the Fifth Circuit ruling, well, the picture started to get a lot dimmer for patients seeking an abortion.
As University of Michigan law professor Leah Litman explained on Twitter, the decision validates the idea that just about anyone who simply dislikes abortion has "standing" to challenge its legality in court.
NEW THEORY: I have standing to appeal the 5th circuit's decision bc it's dumb and I don't like it and I have feelings.https://t.co/E9n1S7ijvi
— Leah Litman (@LeahLitman) April 13, 2023
Furthermore, the Fifth Circuit ruled against more recent FDA rules allowing Mifepristone to be prescribed through telemedicine, even though that change was based on two decades of evidence showing the drug is incredibly safe.
Once legal experts started to dig into the Fifth Circuit ruling, well, the picture started to get a lot dimmer for patients seeking an abortion.
But perhaps the most alarming part of the decision is that the Fifth Circuit seems to approve of Kacsmaryk's invocation of the Comstock Act, a 19th-century "anti-vice" law that was used for decades to terrorize not just abortion providers but anyone accused of educating people about contraception. Its expansive definition of "obscenity" was also used to prosecute not just pornographers but booksellers and art dealers who sold classical paintings that featured nudity.
As Vox's legal expert, Ian Millhiser, explained this week, the law is named after a man who "became the scourge of artists, authors, birth control activists, abortion providers, and pornographers" starting in 1873, when the law was passed, until his death in 1915:
Nearly every word of this law, which is named after the Gilded Age anti-sex crusader Anthony Comstock, is unconstitutional — at least under the understanding of the Constitution that prevailed for nearly all of the past 60 years. The Comstock Act purports to make it a crime to mail "every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance," or to mail any "thing" for "any indecent or immoral purpose" — vague words that inspired a century of litigation just to determine what concepts like "obscenity" actually mean.
For instance, Comstock successfully prosecuted an art gallery owner for selling a replica of "The Birth of Venus" by 19th-century painter Alexandre Cabanel.
The Birth of Venus, by French painter Alexandre Cabanel (1863). Musée d'Orsay. pic.twitter.com/ZdzcRodZ0z
— WikiVictorian (@wikivictorian) March 29, 2023
Comstock also persecuted contraception and abortion providers with murderous zeal. He literally bragged about how many people he drove to suicide, including the famous Madame Restell of New York City, who took her own life in 1878 rather than be sent to prison for providing abortion pills. Even after his death, the law named after him was used to throw Planned Parenthood founder Margaret Sanger in prison for teaching people about birth control.
There's a very real risk that the religious right starts angling to use the Comstock Act to prosecute medical providers for offering contraception
As Michelle Goldberg of the New York Times wrote last week, "the act had been dormant for decades," unenforced due to the legalization of contraception and various court rulings finding that the First Amendment prohibits the expansive censorship that Comstock championed. It was never fully repealed, however, mostly because Congress never saw a need to formally end a law that no one was enforcing. But, as Goldberg writes, "almost as soon as the Supreme Court tossed out Roe, social conservatives started clamoring for the Comstock Act to be enforced against medication abortion." In his decision to dismantle the FDA approval of Mifepristone last week, Kacsmaryk validated the claims that this 1873 law prohibits the mailing of abortion pills.
On Wednesday, as University of Texas law professor Elizabeth Sepper explained, the Fifth Circuit also validated this idea that the Comstock Act is still live legislation.
The Fifth Cir leans ALL THE WAY INTO the Comstock Act. Here the panel suggests that shipping any item that can be used for abortion is a FEDERAL CRIME without any illegal intent. This could include misoprostol and methotrexate among other things. You ship it, you crimed pic.twitter.com/tSjpSFoNBC
— Liz Sepper (@lsepper) April 13, 2023
The GOP's interest in reviving the Comstock Act is unlikely to stay limited to restricting abortion. Right now, there's a Republican movement to roll back decades of First Amendment litigation, with efforts to censor books available in schools and libraries. Multiple Republican-controlled state legislatures are also looking at bills that would ban drag performances or even anything conservatives consider "cross-dressing."
"As if inspired by Comstock's horror of 'literary poison' and 'evil reading,' states are outdoing one another in draconian censorship," Goldberg writes.
There's also a very real risk that the religious right starts angling to use the Comstock Act to prosecute medical providers for offering contraception, or even anyone suspected of educating people on how to prevent pregnancy. The anti-choice movement may be a little quieter about it, but they have long been almost as hostile to birth control as they are to abortion. For decades, the movement has resisted any effort to expand access or understanding of pregnancy prevention, even going so far as to mount successful legal challenges to the Affordable Care Act's classification of contraception as preventive health care that insurance companies must offer to patients free of charge.
Kacsmaryk doesn't just object to legal abortion. In 2015, he wrote a lengthy column in the National Catholic Register in which he condemned "no-fault divorce statutes," the repeal of "legal penalties for fornication and adultery," the legalization of same-sex marriage, and the 1965 Supreme Court decision, Griswold v. Connecticut that ended "nearly all restrictions on contraceptives." According to Kacsmaryk, legalizing contraception and non-marital sex was a scheme by "sexual revolutionaries" to undermine marriage.
So it's quite possible that, if anti-choice activists bring a challenge to legal contraception to Kacsmaryk, he will find his way to validate their claims there, just as he did with this challenge to abortion. Suppose the Fifth Circuit follows through with these hints and rules that the Comstock Act is living law. In that case, there's a real chance the religious right will start filing lawsuits to reverse decades of decisions protecting the free speech rights and basic sexual freedoms Americans have long enjoyed. That was an unimaginable idea a few years ago, but not in an era where Republicans have embraced a censorship campaign that's so expansive that it's banned books about both Rosa Parks and farting leprechauns. In addition, Justice Clarence Thomas openly invited anti-choice activists to file challenges to legal contraception, indicating that he thinks they would find a welcome audience with the Republican-dominated Supreme Court.
In their dissent to the 2022 Supreme Court decision ending nearly 5 decades of abortion rights, Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor warned that the repeal of rights would not stop with Roe. "[N]o one should be confident that this majority is done with its work," they write, explaining that Roe v. Wade rose out of "other settled freedoms involving bodily integrity, familial relationships, and procreation." The decision in Dobbs v. Jackson Women's Health Clinic means, they write, "additional constitutional rights are under threat."
The revival of the Comstock Act suggests this prediction is already coming true. In the Dobbs decision, Justice Samuel Alito invoked the writings of Matthew Hale, a 17th-century jurist who condemned accused "witches" to death, to justify banning abortion. So it's not a stretch if he wants to use a 19th-century American like Anthony Comstock to legitimize the modern GOP's attacks on free speech and contraception.
